The Ombudsman endorses the action of the CNI but advises changes in the law to improve judicial control

  • The institution headed by Ángel Gabilondo supports the legality of espionage 18 independentistassince there was judicial authorization in all cases

  • In its reportopens a path that also poses the PNV and that Sánchez himself does not rule out: legislative amendments to increase the guarantees

The interception of the communications of 18 independentistas ordered by the National Intelligence Center (CNI) was carried out in accordance with the law. That is, with the mandatory authorization of the judge. The Ombudsman affirms it emphatically, who, however, concludes that it is “desirable” that in the future there is a “reflection” on the adequacy or insufficiency of the planned judicial control. That is to say, the institution headed by the former socialist minister Ángel Gabilondo has an ideal landing platform for the Executive, by pointing out the path of a modification of the law that regulates the secret services in a line, in addition, similar to the one proposed by the PNV.The president, Pedro Sánchez, already assured this Wednesday in the plenary session of Congress that he was willing to study a reinforcement of the judicial guarantees of the CNI.

Conclusions of the Ombudsman after the CNI investigation (May 18, 2022)

Conclusions of the Ombudsman after the CNI investigation

The Ombudsman signs this May 18 the report, eight pages [aquí en PDF]with the conclusions of the investigation that it opened ex officio to verify whether the espionage of pro-independence leaders and activists using Pegasus ‘spyware’ —discovered by the Canadian group of experts Citizen Lab— was made with “full respect for the guarantees established in the Constitution and in the rest of the legal system”. His analysis is that he did act correctly. Assessment issued after he himself or personnel from the institution went to the CNI headquarters on the days April 26 and 29, May 3, 5 and 6, visits in which he was able to examine classified documentation, receive complementary verbal information and ask questions of CNI officials. In addition, on May 10, the Ombudsman received a written response from the former Secretary of State for intelligence services, Paz Esteban, dismissed by the Council of Ministers that same day.

The institution went to the headquarters of the secret services five times, received a written response from the director (since dismissed) and verbal clarifications

In view of all this documentation, Gabilondo sanctions that the CNI “has acted with respect” for the provisions of the article 18.3 of the Constitution (secrecy of communications), the article 12 of the law that regulates the CNI and the sole article of the organic law that establishes judicial control prior to the body. In other words, the obligation for secret service officials to request authorization from the magistrate of the Supreme Court to intervene in the communications of 18 pro-independence leaders has been fulfilled. The Defender refers to that figure, 18 spiedwhich was the one leaked from the congressional official secrets commission.

“Widely Motivated” Cars

The institution indicates that the records of the Supreme Court magistrate in charge of prior judicial authorization, Pablo Lucas, were “extensively motivatedessentially based on concrete facts” and the interventions of the authorized communications “In all cases examined“. The judge had “a high degree of information detail” to be able to make his decision. And that magistrate “decides after receiving precise information on the facts that justify the petition, the purposes that motivate it, the reasons that advise it, the people affected and duration, a maximum of three months”, although it can be extended. The means by which the listening was carried out is not specified (that is, if the Israeli-made Pegasus program was used).

The judge had “a high degree of detail of the information” to be able to make his decision, Gabilondo signs in his report

The Ombudsman was also able to verify that in the CNI there are internal regulations for the “management, coordination, processing and assessment of the operational activity” that requires some “special procedures or means for obtaining information”. It was also able to examine the regulations of the center for “the analysis of the operation of the procedure leading to prior judicial authorizations”.

The report of the high commissioner of the Cortes Generales, in its final part, underlines the “transparency” that he has found in the CNI, the “facilities” that he has had to carry out his ex officio investigation and also the “availability” of collaboration that he found in the dismissed Paz Esteban. Total collaboration, by the way, already offered by the Minister of the Presidency, Félix Bolaños, when he offered a package of measures to the ‘consellera’ Laura Vilagrà at her meeting in Barcelona on April 24. Gabilondo has found a “very significant cast of controls” of the CNI, especially after the approval of the 2002 law that gave birth to the new organism and ended the old Cesid.

The former minister recalls that the intelligence services “are part of and are at the service of the State” and the intervention of communications is possible as long as it is done within the law. Listening, remember, is not done for ideological reasons (that is, no one is spied on for their ideas), but what is pursued it is “what is done in a non-democratic way, with violence and/or against the rights of many other citizens and the State itself”. And it is the “main mission“of the CNI, he warns, to ensure the territorial integrity of the country, national interests and the stability of the rule of law and its institutions.

Changes in 20 years

In this way, he points out, the debate must stick to “the adequacy or insufficiency of controls“, because the interception of communications is provided for in the Constitution if there is judicial control. Parliamentary control, on the other hand, is exercised through the official secrets commission of Congress, which was not constituted in this legislature until last 28 April. That the organ did not form was a “anomaly“, he remarks.

The Ombudsman avoids ruling on specific formulas, but he does believe that “the possibilities of improving judicial control should be explored”

The Ombudsman opens a debate, therefore, on whether it is necessary to reinforce prior judicial control, although he has proven its “correct functioning in the cases analyzed”. “The twenty years that have passed,” says the report, “the impressive technological evolution of the last two decades (which includes systems such as Pegasus ‘spyware’), the changes that will come in the near future, the acceleration of communication and information, finally, should lead to open a reflection on the sufficiency or insufficiency of the existing judicial control, now and in the future. Communications interception does not mean the same thing in 2022 as it did in 2002, nor will it mean the same thing in a few years.”

Gabilondo indicates that it is not their function to propose concrete formulas, which should be conformed through “very large majoritiesas they are real issues of State”. But he does consider that “the possibilities of improvement of judicial control”. It should be taken into account, he indicates, what the experts on intelligence and security issues say, the “concerns” of some citizens and organizations and the considerations that the European Parliament may formulate about the Pegasus program (there is commission of inquiry is underway).

The Government “is willing to listen” to proposals to strengthen the judicial guarantees of the CNI but does not question its “trust” in it

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Likewise, it considers that the “increasing opening of the CNI to society”, the joint programs with different universities and the “high critical potential (and self-critical) of its professionals guarantee the configuration of a collection of ideas that would allow defining what is prudent and effective (and what is not)”.

The PNV is the one that, in the Chamber, has opened the melon of a legal reform to strengthen judicial control and parliamentarian of the CNI. Sánchez was not closed to it this Wednesday, in response precisely to the nationalist spokesman, Aitor Esteban: “The Government is willing to listen to as many proposals as necessary for the reinforcement of judicial guarantees of the CNI in order to improve trust, which, of course, the Government does not question”. The question now is whether the Executive will dare to pick up the glove and modify the regulatory law of the center also as a way to calm ERC.

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